This decision, one aspect of which (a request for exclusion from public inspection) was discussed in the preceding post, also contains an interesting passage on an alleged prior use.
[2.1] The alleged prior use is based on D14, D15a and D15b as evidence that a closure assembly under the name “Alusnap” was launched or put on the market, i.e. at least offered for sale, before the priority date of the patent in suit. It is only necessary to discuss D14 as will become apparent below. D14 is a document dated November 2005 supporting an offer for the sale of shares in a company which has the name Guala Closures S.p.A.
In a table on page 71 of D14 a launch date of 2001 is indicated for a closure with the name “Alusnap”. There is also a reference on this page to “Alusnap” being patent protected. The said table indicates the number of components in “Alusnap” as 6. On page 72 of the document there is a diagram of the closure.
In the patent in suit it is stated in column 2, lines 45 to 46 that “The Applicant has named the device of the invention “ALUSNAP” (Trade Mark)”.
[2.2] As part of the evaluation of the alleged prior use it must be considered what may have been prior used, i.e. what are the technical features of any prior used device. D14 has on page 72 a diagram of an “Alusnap closure”. If this diagram is to be considered as evidence of the features of the prior used closure then it must be proven that the prior used closure is identical to that shown in this diagram.
Apart from the name “Alusnap” there is no link between the diagram on page 72 of D14 and the allegedly prior used closure. “Alusnap” is a trade mark (see column 2, lines 45 to 47 of the patent in suit). A trade mark is used to indicate the origin of goods or services and is not normally considered to be an indication of the technical features of a device with which it is associated. It is moreover normal for improvements to be made to a device without however changing its name or trade mark. In the present case both D1 (see page 3, lines 2 and 3) and the patent in suit (see above) indicate that the device disclosed therein is named “Alusnap”, even though these documents disclose different devices. There is thus evidence that in the case of “Alusnap” the same name has been used for closures having differing technical features. It must therefore be concluded that this trade mark is not one which exceptionally could be considered to uniquely define the technical features of device with which it is associated.
In this respect the Board notes that the number of components of the device is given as six in the said table in D14 whereas the number of components in the devices according to the patent in suit and D1 could be considered to be different due to the first and second outer sleeves being separate in the device according to the patent in suit. Opponent I and opponent III gave differing answers concerning the number of components in the device according to D1. The Board concludes therefore that also this information given in D14 does not allow the device to be identified.
There is hence no evidence as to the technical features of the closure that is stated to have been launched in 2001. The closure could, for instance, have corresponded to the one disclosed in D4 which has the same applicant as for D1, or it could have been a still further closure having quite different features.
Not only is there no evidence that “Alusnap” is a unique name for a particular form of closure, there is evidence that it specifically is used for closures having varying technical features.
[2.3] In this respect the Board also notes that it does not necessarily accept that the reference to a “launch date” in D14 or the other evidence relating to the circumstances and date of the alleged prior use is sufficient to prove that a prior use actually has taken place. The Board does not have to consider these matters since, as explained above, it does not consider that what might have been prior used has been proven.
[2.4] The Board concludes therefore that the technical features of the allegedly prior used closure have not been proven.
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The file wrapper can be found here.
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